Miles T.,1 Complainant,v.Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Nov 21, 2018

0120171575 (E.E.O.C. Nov. 21, 2018)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Miles T.,1
Complainant,

v.

Nancy A. Berryhill,
Acting Commissioner,
Social Security Administration,
Agency.

Appeal No. 0120171575

Hearing No. 510-2010-00316X

Agency No. ATL-10-0080-SSA

DISMISSAL OF APPEAL

By Notice of Appeal postmarked March 31, 2017, Complainant filed an appeal with the Equal
Employment Opportunity Commission (EEOC or Commission) from the Agency’s October 16,
2014, final order concerning his EEO complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e
et seq.

On appeal, Complainant states that he did not receive a copy of the Agency’s final order until
March 2017, and that his appeal is timely. The record shows that the Agency sent the final order
to Complainant via the United Parcel Service (UPS), with tracking number 1Z 75R 91E A89222
8633. However, the Agency but did not provide proof of delivery, and a search on the UPS website
did not provide the date of delivery because it only retains information for the past 120 days.

While we note that it is impossible to determine when Complainant received the Agency’s final
order, Complainant received a copy of the EEOC Administrative Judge’s (AJ) decision, dated
September 23, 2014. The AJ informed Complainant that he may not appeal directly to the
Commission from the decision, unless the Agency has not issued its final order within forty (40)
calendar days of its receipt. Further, EEOC regulations state that an AJ’s decision becomes an
Agency’s final action if it does not issue a final order within 40 days. 29 C.F.R. § 1614.110(i).

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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In this case, the Agency issued a final order, which Complainant states he did not receive until
more than two years later. However, the AJ informed Complainant that he had appeal rights
starting forty days after the AJ’s decision, if the Agency did not issue a final order. The AJ also
informed Complainant that his deadline to file an appeal with the Commission was 30 calendar
days. Since Complainant did not receive the Agency’s final decision within 40 days, he should
have presumed that the AJ’s decision became the Agency’s final action, and filed his appeal within
30 calendar days, in December 2014. We find that his filing of the appeal in March 2017 is
therefore untimely.

CONCLUSION

Accordingly, Complainant’s March 28, 2017, appeal is hereby dismissed. See 29 C.F.R.
§ 1614.403(c).

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which tend to establish
that:
1. The appellate decision involved a clearly erroneous interpretation of material fact or
law; or
2. The appellate decision will have a substantial impact on the policies, practices, or
operations of the Agency.
Requests to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment
Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B
(Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R.
§ 1614.403(g). The request or opposition must also include proof of service on the other party.

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Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very limited
circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)
You have the right to file a civil action in an appropriate United States District Court within ninety
(90) calendar days from the date that you receive this decision. If you file a civil action, you must
name as the defendant in the complaint the person who is the official Agency head or department
head, identifying that person by his or her full name and official title. Failure to do so may result
in the dismissal of your case in court. “Agency” or “department” means the national organization,
and not the local office, facility or department in which you work. If you file a request to reconsider
and also file a civil action, filing a civil action will terminate the administrative processing of
your complaint.

RIGHT TO REQUEST COUNSEL (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request
permission from the court to proceed with the civil action without paying these fees or costs.
Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the
court to appoint an attorney for you. You must submit the requests for waiver of court costs or
appointment of an attorney directly to the court, not the Commission. The court has the sole
discretion to grant or deny these types of requests. Such requests do not alter the time limits for
filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for
the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

November 21, 2018
Date